11 Wis. 258 | Wis. | 1860
By the Court,
This was an appeal from an order refusing a new trial. The action was brought to foreclose a mortgage, and an answer was filed, the nature of which does not appear in the papers brought here by the appeal, but which, it seems, was treated as forming an issue. A few days before the case was likely to be reached, in its
There is room for doubt whether the court was right in refusing to give effect to the stipulation on the trial, although it was not in writing, as required by the rule. The object of that rule was to prevent disputes and uncertainties as to what was agreed upon. But here both counsel admitted the stipulation, which would seem to take it out of the reason, if not of the letter of the rule. But even conceding that the court was right in disregarding it upon the trial, we still think it was wrong in overruling the motion for a new trial, if the application was sufficient to show merits in the defense. We think it well established by the authorities, that although the rule requires stipulations to be in writing, in order to be binding, yet it was not designed to allow a party who had entered into a verbal stipulation, upon which his adversary had relied and acted, to obtain an unjust advantage, and destroy the other’s rights, by disregarding it himself. 6 Cow., 385; 8 id., 119; Montgomery vs. Ellis, 6 How. Pr., 336; Wager vs. Stickles, 3 Paige, 407; Turner vs. Burrows, 1 Hill, 627. We think, therefore, assuming that the answer set up a
But here the answer does not appear. And the affidavit of merits, made by the defendant on his application for a new trial, is insufficient. It says he has stated “ his defense ” to his counsel, not that he has stated the case. We held, in Mowry vs. Hill, decided at this term, supra, 146, that an affidavit of merits should be filed on such applications. The practice is salutary, and tends to prevent litigation for delay merely. We held, also, that a sworn answer was not sufficient, because a party may be able to swear to an answer which alone would show a defense, and yet know that on the trial its effect might be entirely avoided by other facts. It is upon this reason that the authorities deny that it is sufficient in an affidavit of merits to state that the party has “stated his defense” to counsel. If he had stated the whole facts of the case within his knowledge, their advice might have been entirely different. For this reason, we must affirm the order appealed from, with costs.